Joe Hobbs d/b/a Superior Marble & Glass v. Doug Smith

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

JOE HOBBS DBA SUPERIOR MARBLE & GLASS

APPELLANT

V.

DOUG SMITH

APPELLEE

CA00-00622

FEBRUARY 21, 2001

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CIVIL 1998-378]

HONORABLE TOM SMITHERMAN,

CIRCUIT JUDGE

AFFIRMED

Appellant brings this appeal from a judgment awarding damages to a former employee for sums withheld from the employee's paycheck in violation of state and federal law. The appellant employer argues that the trial court erred when it failed to apply a three year statute of limitations applicable to an oral contract of employment. We affirm.

The appellee employee, Doug Smith, filed a complaint against appellant, Joe Hobbs, d.b.a. Superior Marble & Glass alleging that Mr. Hobbs withheld from appellee's paycheck both the employers contribution to the Social Security Administration in violation of 26 USCS 3509(d)(B) and the cost of workers' compensation insurance in violation of Ark. Code Ann. § 11-9-109 (1997). In an amended answer, Mr. Hobbs asserted the affirmative defense

of statute of limitations and in a motion for directed verdict argued, as he does onappeal, that the employment agreement was an oral contract and that a three year statute of limitations prevented the appellee's recovery. The trial court awarded a judgment together with pre- and post-judgment interest, denied punitive damages finding insufficient evidence, and awarded attorney's fees.

In making a determination on the application of a statute of limitations, the court looks to the complaint itself. Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992). Arkansas is a fact-pleading state and does not recognize notice pleading; pleadings are to be drafted in such a manner as to give a party fair notice of what the claims are and the grounds upon which they are based. Id. It is the gist of the action itself that determines which statute of limitations applies. Ernest F. Loewer, Jr. Farms v. Nat'l Bank of Ark., 316 Ark. 54, 870 S.W.2d 726 (1994).

Nothing in the complaint in this case supports appellant's contention that this action sounds in contract; therefore, the trial court did not err in refusing to apply the statute of limitations for an oral contract. No other statute of limitations was argued below or on appeal. Accordingly, we affirm.

Affirmed.

Pittman and Roaf, jj., agree.